Practice. Exceptions. New Trial. Rule XVII. Waiver. Pleading. Negligence. Contributory Negligence. Nuisance. The filing of a motion for a new trial with the presiding justice pursuant to Rule XVII does not result in a waiver of exceptions previously noted and otherwise preserved by order of the court providing for the time of filing the transcript and extended bill (R.S., 1954, Chap. 113, Sec. 60). If, however, it develops that the issues to be decided upon the exceptions and the motion are the same, manifestly a decision on one is sufficient; likewise an error in perfecting one is not fatal to the other. R.S., 1903, Chap. 84, Sec. 53 (Chap. 87, Sec. 57, R.S., 1916), was superseded by Sec. 59, Chap. 113, R.S., 1954 and Rule XVII, and provides that a report of the evidence may be authenticated by an official reporter. The allegation of existing duty and breach thereof constitute better pleading even though the duty claimed to have been breached may be supported by the averment of facts from which the law will imply a duty and breach thereof.

excepting only that such a motion addressed to said Law Court
after denial of a like motion by the presiding justice must
be filed within ten days after decision adverse to the moving
party is filed by the presiding justice."

"No exceptions lie to the decision of the presiding justice
and no appeal except in cases of felony."

"When such motion is addressed to the Law Court, the party
making it shall cause a report of the whole evidence in the
case to be prepared, signed by the presiding justice or
authenticated by the certificate of the official court
stenographer, and filed within such time as the presiding
justice shall by special order direct, and, if no such order
is made, it must be done within thirty days after the
adjournment of the term at which the verdict was rendered or
within thirty days after the filing of the motion, whichever
is later; if not so done, the motion may be regarded as
withdrawn, and the clerk, at a subsequent term, may be
directed to enter judgment on the verdict."

The record indicates that at the close of the evidence, the defendant addressed a motion to the presiding justice praying that a verdict for the defendant be directed. This motion was denied. Exceptions were noted and at that time the presiding justice, by special order, directed that a transcript of the evidence be filed on or before April 30, 1957. The transcript was filed on April 29, 1957. A date was also fixed for the filing of an extended bill of exceptions which bill was filed within the time allowed.

Subsequent to the motion for a directed verdict, the defendant addressed a motion for a new trial pursuant to the provisions of Rule XVII, to the presiding justice. This motion was denied.

It now becomes pertinent, we think, to decide whether or not in a civil case, the filing of a motion for a new trial addressed to the presiding justice, constitutes a waiver of prior exceptions, taken to the refusal to direct a verdict, in the light of § 60, Chapter 113, R.S., 1954, which authorizes the filing of a motion for a new trial addressed to the Law Court within ten days after an adverse decision on the part of the presiding justice upon the motion addressed to him.

In the very enlightening treatise of former Chief Justice Edward F. Merrill, entitled "Some Suggestions On Taking A Case To The Law Court" to be found in Volume Forty of the Reports of the Maine State Bar Association, the author had this to say; at Page 197:

The history of the decisions of this court on the question of
waiver is of interest. In the case of State v. Simpson, 113 Me. 27;
92 A. 898; a respondent was under indictment for a
misdemeanor. After the State had introduced all its evidence, the
respondent requested the presiding justice to direct a verdict in
his favor on the ground of insufficient evidence. This motion was
denied and exceptions taken. After a verdict of guilty, the
respondent filed a motion addressed to the presiding justice to
set aside the verdict as against the law and the evidence. This
motion was overruled,

and exceptions noted. The court said that a respondent had a right to except to the refusal of the presiding justice to direct a verdict in his favor, and upon denial of the motion, he could have taken exceptions, and in that manner take the case to the Law Court and obtain a decision and opinion as to the sufficiency of the evidence. However, the court further said, he abandoned that remedy and that course of procedure, and sought the decision and opinion of the presiding justice upon precisely the same question. It follows, the court said, that exactly the same question was presented to the determination of the presiding justice by the motion which would have been presented to the Law Court on the first exception. The court ruled that the decision of the presiding justice on the motion was final; that it was a matter within his discretion, and that exceptions did not lie to his ruling. It was pointed out that in a civil case, no appeal lies from the decision of the presiding justice to the Law Court and a defeated party cannot be heard on a motion both before the single justice and the Law Court. He must exercise his option and take one course or the other. And, having exercised his choice is bound by the result.

The court called attention to the distinction between procedure in the case of a misdemeanor and of a felony. In the latter procedure provision is made by statute for an appeal to the Law Court from the denial of a motion for a new trial by the presiding justice. Section 30, Chapter 148, R.S., 1954.

The court then went on to say:

"This Court has frequently held both in criminal and civil
cases that the prosecution of a motion for new trial before
the presiding justice is a waiver of all rights of
exception."

Several old decisions of this court were cited in support of this last quotation.

The next case to be considered is that of State v. Power, 123 Me. 223; 122 A. 572. This was a search and seizure process for intoxicating liquor, a misdemeanor. The jury returned a verdict of guilty. Exceptions were entered by the respondent to a ruling admitting certain testimony, to the refusal to give requested instructions, and also to a ruling overruling a motion in arrest of judgment. The respondent then filed a motion for a new trial, which was overruled by the presiding justice.

Relying upon the decision in State v. Simpson, supra, the court ruled that the respondent had deprived himself of any claim to be heard on any exceptions arising before a hearing on the motion for a new trial.

Relying on the decision in State v. Simpson, supra, the court stated that an exception to the refusal to direct a verdict for the defendant is waived by the prosecution of a motion for a new trial before the presiding justice, as otherwise, the court said, the defendant would be seeking the same remedy through two tribunals, getting the benefit of the second if he failed in the first.

"As the motion raises the same question for our consideration
as does the exception, the exception is regarded as waived."

At first glance, it would appear that this decision is directly contra to the one of Mills v. Richardson, supra, in which it had been held that a motion addressed to the Law Court did not waive exceptions taken to a denial of a motion for a directed verdict.

Careful study of the two decisions, however, indicates no inconsistency. Undoubtedly, in Symonds v. Free Street Corporation, supra, the court meant that in view of the fact the exceptions and motion actually raised the same question,

In this case we find an expression similar to the one used in Symonds v. Free Street Corporation, viz:

"The exceptions taken to the denial of the defendant's motion
for directed verdict and the general motion for a new trial
raise the same question. That exception must be regarded as
waived."

Undoubtedly, the court meant that the issues, encompassed in the general motion addressed to the Law Court, were no broader than those covered by the exceptions to the refusal to direct a verdict, in which event, there was no reason for deciding both.

The decision of Labbe v. Cyr, et al., 150 Me. 342; 111 A.2d 330, is of interest. In that case, after a verdict for the plaintiff, the defendant addressed a motion for a new trial to the presiding justice. The motion was denied. Defendant then attempted to prosecute exceptions taken to rulings of the court during the progress of the trial. Plaintiff contended that by his motion for a new trial to the presiding justice, defendant had waived his right of exceptions. In arriving at the decision that exceptions to ruling of the presiding justice during the trial were not waived by motion for a new trial subsequently addressed to the presiding justice, this court, in its opinion, developed in a very interesting and clear-cut manner the historical aspects of cases pertinent to this issue.

"When a motion is made in the Superior Court to have a
verdict set aside as against law or evidence, a report of the
whole evidence shall be signed by the presiding justice or
authenticated by the certificate of the official court
reporter."

Rule XVII is based upon this new section. See White v. Schofield, 153 Me. 79, at 83; 134 A.2d 755.

The record shows that the evidence which was filed, was authenticated by the certificate of the official court stenographer. This was sufficient compliance with Rule XVII, and it was not necessary for the evidence to be signed by the presiding justice.

As previously indicated, the record, substantiated by the docket entries, shows that a date was set by the presiding justice for the filing of the evidence. True, this was done by him at the time the defendant noted his exceptions to the refusal to grant a directed verdict, but, in our opinion, the entry of a new order by the presiding justice serves no useful purpose.

It is our opinion that the defendant has fully complied with the Rule and that his exceptions and motion are properly before us.

"In actions for the recovery of damages for personal injury
the duty claimed to have been breached and the breach of it
may be pleaded either by forthright assertion or the averment
of facts from which the law will imply them." Glidden v. Bath
Iron Works Corporation, 143 Me. 24; 54 A.2d 528; Bartley et
al v. Couture, 143 Me. 69; 55 A.2d 438.

In this case there are sufficient averments of fact in the declaration from which the law will imply a duty and breach thereof.

See also 66 C.J.S. Nuisances § 11 b. Page 755, to the effect that contributory negligence is an appropriate defense to an action based on nuisance which is in fact grounded on negligence. For a similar rule, see also, 39 Am. Jur. Nuisance § 200, Page 475.

The instant case was tried like an ordinary negligence action. The presiding justice carefully and explicitly explained the law of negligence to the jury, and his charge included adequate instructions upon the issue of contributory negligence. Neither counsel objected to the manner of trial and no exceptions were taken to any portion of the charge of the presiding justice, and no request for additional instructions were made by either counsel.

It is elementary that the law will not allow a party to recover for injuries to which his own negligence contributed as a proximate cause.

"The burden to prove the negligence of the defendant, and to
prove that no lack of due care contributed to the injuries,
was upon the plaintiffs. Baker v. Transportation Co.,
140 Me. 190;
Rouse v. Scott, 132 Me. 22. The standard of measurement
for both parties is, therefore, the care and caution
exercised by a person who is ordinarily prudent and
thoughtful. One who falls below this level, when in dangerous
circumstances, is negligent. The law does not expect the
impossible, but it does expect ordinary or reasonable care."
Barlow, Pro Ami v. Lowery, 143 Me. 214, 217; 59 A.2d 702.

"Care and vigilance on the part of vehicular travelers should
always vary, according to the exigencies which require
vigilance and attention. An automobile driver is bound to use
his eyes, bound to see seasonably that which is open and
apparent, and take knowledge of obvious dangers. When he
knows, or reasonably ought to know, the danger, it is for him
to govern himself suitably. Thoughtless inattention on the
highway, as elsewhere in life, spells negligence." Callahan
v. Bridges Sons, Inc., 128 Me. 346, 348; 147 A. 423.

"A motor vehicle operator is bound `to use his eyes to see
seasonably that which is open and apparent, and take
knowledge of obvious dangers. When he knows, or reasonably
ought to know, the danger, it is for him to govern himself
suitably. Thoughtless inattention on the highway, as
elsewhere in life, spells negligence." Rouse v. Scott,
132 Me. 22, 24; 164 A. 872.

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